Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-17-00568-CR
The STATE of Texas, Appellant
v.
Martin LOPEZ, Appellee
From the County Court at Law No. 7, Bexar County, Texas Trial Court No. 549327 Honorable Genie Wright, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: August 15, 2018
AFFIRMED
The State appeals the trial court’s order dismissing a misdemeanor assault charge against
Martin Lopez on speedy trial grounds. As the parties acknowledge, the facts of this case are
relatively uncommon in speedy trial cases. Lopez, who suffers from mental health disorders, was
arrested for “putting his teeth [on his elderly mother’s face] while trying to bite her.” Lopez was
placed in county jail, and he could not make bail. The State took nearly three months to decide
whether a felony or misdemeanor assault charge would be more appropriate, determining
ultimately to file a misdemeanor charge. A visiting judge thereafter denied Lopez’s request for 04-17-00568-CR
bail and set trial for twelve days later. Despite Lopez’s trial counsel raising the issue of his
incompetence to stand trial at the pretrial hearing, Lopez was not evaluated. At trial, the State and
Lopez’s trial counsel expressed concerns about Lopez’s competency. Based on the length of
Lopez’s pretrial incarceration and inevitable future delays for competency proceedings, Lopez
requested that the trial court dismiss the case on speedy trial grounds. The trial court agreed and
dismissed the misdemeanor assault charge. Considering the factors set out by the Supreme Court
of the United States in Barker v. Wingo, 407 U.S. 514 (1972), we conclude the trial court did not
err and, accordingly, affirm the trial court’s order.
BACKGROUND
On April 18, 2017, Lopez allegedly “put[] his teeth [on his elderly mother’s face] while
trying to bite her.” Lopez was arrested that day, and he was unable to make bail. The State opened
a felony case against Lopez, but Lopez was never indicted.
While Lopez was in jail, Lopez’s appointed trial counsel received a July 2, 2017 notice
under article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1 (West 2015). The notice
stated Lopez had been in custody for seventy-five days awaiting an indictment. It further stated:
Pursuant to Article 17.151 section 1 of the Texas Code of Criminal Procedure, a defendant who is detained in jail pending trial of accusation against them must be released either on personal bond or by reducing the amount of bail required, if the State is not ready for trial of the criminal action for which they are being detained within 90 days from the commencement of their detention if they are accused of a felony.
On July 12, 2017, five days before the ninety-day deadline, the State filed a misdemeanor assault
charge against Lopez and sought to keep him incarcerated in county jail.
At the July 27, 2017 pretrial hearing before a visiting judge, Lopez raised the issue of his
competency to stand trial and requested a personal recognizance bond. The visiting judge denied
Lopez’s request. Although the visiting judge ordered Lopez’s mental competence to be evaluated
-2- 04-17-00568-CR
over the weekend, no evaluation was conducted. The trial date was set for twelve days later on
August 8, 2017.
On August 8, 2017, the trial court called the case and began by asking Lopez questions,
with the permission of his trial counsel. Lopez testified he has mental issues, but had no present
desire to harm himself or others. Lopez testified he wanted the case dismissed because he had been
in jail for four months. Lopez’s trial counsel orally moved for a speedy trial, requesting that the
case be dismissed.
The State responded it had a right to notice on the speedy trial motion, and that it was ready
to proceed to trial. However, the State raised “concerns about [Lopez]’s mental health and
competency to proceed to trial, possibly.” The trial court then stated:
All right. This is what I’m going to put on the record. This man has no place to live. Because of a prior suicide watch, Haven for Hope will not take him. He has been in jail. There is some serious questions about whether or not anybody can proceed with this case. There are serious questions about whether his mother will even testify against him. She is currently in possession of a protective order -- which means you have to stay away from her. So I feel like the victim in this case has been protected, and she’s quite involved in the case from what I’ve learned from the attorney, and she’s quite vocal about what she wants to accomplish.
The State did not object to the trial court taking notice of these matters.
The proceeding went off the record, and Lopez’s trial counsel filed a written Motion for
Speedy Trial. Back on the record, the State again asserted its right to notice on the motion. The
trial court overruled the State’s objection, noting the case was set for trial on that date and that the
State had announced ready to proceed. The trial court admitted into evidence the article 17.151
notice that, together with Lopez’s testimony, showed Lopez had spent 112 consecutive days in
county jail as of the August 8, 2017 trial date.
The trial court asked the State to explain the delay in the case up to that point. The following
exchange occurred:
-3- 04-17-00568-CR
[THE STATE]: Your Honor, I don't believe they found no assault took place. They dismissed it and refiled it as a misdemeanor because I think they believed it was a more appropriate charge than the felony.
[TRIAL COUNSEL]: I believe, Your Honor, they could say an assault took place, but there was no bodily injury, which was required for the felony.
[THE STATE]: There was bodily injury in the case.
THE COURT: Well, here are our choices: The man has spent what would be the equivalent of almost a year in jail if you’re giving him two for one. He is not competent. We can’t try the case.
[TRIAL COUNSEL]: Your Honor, even if we sent him for a competency hearing, that would be another month and he would be in jail for a full year.
THE COURT: And he would come back as being incompetent to stand trial.
[TRIAL COUNSEL]: Correct.
THE COURT: So I’m going to grant your Motion for a Speedy Trial, and I’m going on the record saying, State, you’re right. This is something that we need to take care of in court and the Court has no means to take care of it. We can’t try him. It’s just not right to leave him in jail, and we really don’t have any timely services to offer him.
Lopez’s trial counsel further stated that both he and the State agreed there was an issue as to
Lopez’s competency to stand trial or to enter a plea.
The trial court stated it had no choice but to grant Lopez’s Motion for Speedy Trial and to
dismiss the case. The trial court and trial counsel explained to Lopez he could not see or contact
his mother because she had a protective order. They also explained to Lopez that he was expected
to seek mental health counseling immediately. Before the end of the hearing, the State argued the
trial court could not dismiss the case because article 46B.005 of the Texas Code of Criminal
Procedure required the court to order a competency evaluation. Apparently disagreeing with the
State, the trial court signed an order granting Lopez’s Motion for Speedy Trial and dismissing the
misdemeanor assault charge. The State timely filed a notice of appeal.
-4- 04-17-00568-CR
THE STATE’S SOLE ISSUE & ARGUMENTS ON APPEAL
The State presents a single issue on appeal, “Did the trial court err by failing to order a
competency evaluation and, instead, dismissing the information against [Lopez] less than four
months after he was arrested?” The State argues that once the trial court believed Lopez might be
incompetent to enter a plea or stand trial, the trial court had no discretion but to refer Lopez for a
competency evaluation. See TEX. CODE CRIM. PROC. ANN. art. 46B.005(a) (West 2018). The State
further argues the trial court lacked a basis to dismiss the case either under the Sixth Amendment
or under Chapter 46B of the Texas Code of Criminal Procedure.
The State does not raise an issue or argue that the trial court erred by granting Lopez’s
Motion for Speedy Trial based on the State not being provided with sufficient notice. The State
also does not raise an issue or argue that the trial court improperly took judicial notice of any of
the facts that the trial court noted for the record. In its reply brief, the State argues we may not
consider any matters at the pretrial hearing before the visiting judge because Lopez “has not
supplemented this Court with a record to support [his] claims” about the hearing. We disagree for
two reasons. First, on August 8, 2017, the parties agreed that certain matters were raised at the
pretrial hearing before the visiting judge. Thus, the record before us reflects some of the matters
raised at the pretrial hearing. Second, because this is a State’s appeal, the State has the burden to
present a sufficient record demonstrating its entitlement to the relief it seeks. See State v. Weiss, 8
S.W.3d 342, 344 (Tex. App.—Beaumont 1999, no pet.); State v. Thomas, 938 S.W.2d 540, 542
(Tex. App.—Dallas 1997, no pet.). When, as here, the State appeals, requests or causes to be filed
a partial reporter’s record, and does not designate its points or issues for appeal, we must presume
the omitted part of the reporter’s record supports the trial court’s ruling. See TEX. R. APP. P.
34.6(c); Zavala v. State, 498 S.W.3d 641, 642 (Tex. App.—Houston [14th Dist.] 2016, no pet.);
see also State v. Mackenzie, No. 13-16-00006-CR, 2017 WL 3306427, at *4 (Tex. App.—Corpus -5- 04-17-00568-CR
Christi Aug. 3, 2017, no pet.) (mem. op., not designated for publication). We therefore turn to
address the State’s sole issue in light of the partial reporter’s record presented by the State.
MANDATORY COMPETENCY EVALUATION UNDER CHAPTER 46B
The State argues the trial court erred under chapter 46B of the Texas Code of Criminal
Procedure by not allowing the prosecution to proceed and ordering a competency evaluation. We
review a trial court’s implied decision not to order a competency evaluation for an abuse of
discretion and consider the totality of the surrounding facts. See Gray v. State, 257 S.W.3d 825,
827 (Tex. App.—Texarkana 2008, pet. ref’d). Article 46B.005 of the Texas Code of Criminal
Procedure provides, “If after an informal inquiry the court determines that evidence exists to
support a finding of incompetency, the court shall order an examination . . . to determine whether
the defendant is incompetent to stand trial in a criminal case.” TEX. CRIM. PROC. CODE ANN.
§ 46B.005(a). Generally, article 46B.005(a)’s provision for ordering a competency examination
imposes a mandatory duty on the trial court. See id.; TEX. GOV’T CODE ANN. § 311.016(2) (West
2013) (“‘Shall’ imposes a duty.”). But we must consider the totality of the surrounding facts. See
Gray, 257 S.W.3d at 827.
Here, Lopez argued his prosecution violated his constitutional right to a speedy trial. We
may not construe chapter 46B, a state statute, in conflict with the constitution of the United States
or of the State of Texas. See U.S. CONST. art. VI, cl. 2; see also TEX. GOV’T CODE ANN.
§ 311.021(1); State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018) (“We have a duty to
narrowly construe statutes to avoid a constitutional violation.”). We conclude a defendant must
not be forced to undergo a competency evaluation in furtherance of his prosecution if his
prosecution violates his constitutional rights. See TEX. GOV’T CODE ANN. § 311.021(1); Cortez,
543 S.W.3d at 206.
-6- 04-17-00568-CR
“If a violation of the speedy trial right is established, the only possible remedy is dismissal
of the prosecution.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (citing Strunk
v. United States, 412 U.S. 434, 440 (1973)). Thus, whether the trial court erred under article
46B.005(a) by not ordering a competency evaluation turns on whether the trial court erred by
granting Lopez’s motion to dismiss based on his constitutional right to a speedy trial. If the trial
court erred, and if a remand were necessary for further proceedings, we agree with the State that
any further proceedings would require a competency evaluation. But we must determine, as an
initial matter, whether the trial court erred by dismissing the misdemeanor assault charge on speedy
trial grounds.
RIGHT TO A SPEEDY TRIAL
The Sixth Amendment to the U.S. Constitution guarantees the accused in a criminal
prosecution the right to a speedy trial. Hopper v. State, 520 S.W.3d 915, 923 (Tex. Crim. App.
2017) (citing U.S. CONST. amend. 6; Vermont v. Brillon, 556 U.S. 81, 89 (2009)); see Klopfer v.
North Carolina, 386 U.S. 213, 222-23 (1967) (holding Sixth Amendment speedy trial right applies
to states via the Fourteenth Amendment). The Texas Constitution similarly guarantees the accused
a speedy trial in a criminal prosecution. TEX. CONST. art. 1, § 10. Although it is unclear whether
Lopez asserted his right to a speedy trial under the U.S. Constitution, the Texas Constitution, or
both, we apply the same test. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). When
evaluating a speedy trial claim under Barker v. Wingo, courts generally must “consider the length
of delay, the reasons for delay, to what extent the defendant has asserted his right, and any
prejudice suffered by the defendant.” Hopper, 520 S.W.3d at 923 (citing Barker, 407 U.S. at 530-
32); see Harris, 827 S.W.2d at 956. “The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. The conduct of -7- 04-17-00568-CR
both the State and the defense must be weighed in balancing the Barker factors, and no single
factor is an essential or sufficient condition to the finding of a speedy trial violation. See id. at 530,
533. “No one factor possesses ‘talismanic qualities,’ thus courts must ‘engage in a difficult and
sensitive balancing process’ in each individual case.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex.
Crim. App. 2002) (quoting Barker, 407 U.S. at 533).
We apply a bifurcated standard of review. Id. “When reviewing the trial court’s application
of the Barker test, we give almost total deference to the trial court’s historical findings of fact that
the record supports, and we draw reasonable inferences from those facts necessary to support the
trial court’s findings.” Balderas v. State, 517 S.W.3d 756, 767-68 (Tex. Crim. App. 2016). “An
appellate court reviewing a trial court’s ruling on a motion to dismiss for want of a speedy trial
must do so in light of the arguments, information, and evidence that was available to the trial court
at the time it ruled.” Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). However, we
do not consider “evidence that was not before the trial court when it made its ruling.” Balderas,
517 S.W.3d at 768.
“Review of the individual Barker factors necessarily involves fact determinations and legal
conclusions, but the balancing test as a whole is a purely legal question that we review de novo.”
Id. (citing Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997)). Because Lopez
prevailed on his speedy trial claim, “we presume the trial court resolved any disputed fact issues
in [his] favor.” State v. Ritter, 531 S.W.3d 366, 371 (Tex. App.—Texarkana 2017, no pet.) (citing
State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)). When, as here, the State did not
request, and the trial court did not make, findings of fact and conclusions of law, we will imply all
findings necessary to support the trial court’s ruling if those findings are supported by the record.
Id.
-8- 04-17-00568-CR
A. The Length of the Delay
The first factor we must consider is the length of the delay. Barker, 407 U.S. at 530;
Hopper, 520 S.W.3d at 924; Wisser v. State, 350 S.W.3d 161, 165 (Tex. App.—San Antonio 2011,
no pet.). This first factor involves “a double inquiry: A court must consider whether the delay is
sufficiently long to even trigger a further analysis under the Barker factors, and if it is, then the
court must consider to what extent it stretches beyond this triggering length.” Hopper, 520 S.W.3d
at 924 (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992)). The length of delay is
measured from the time the defendant is arrested or formally accused, whichever is first. Dragoo,
96 S.W.3d at 313 (citing United States v. Marion, 404 U.S. 307, 313 (1971)).
1. Whether the length of the delay was presumptively prejudicial
“[C]ourts have usually tried to settle upon some time period after which . . . it makes sense
to inquire further into why the defendant has not been tried more promptly.” 5 WAYNE R. LAFAVE,
ET AL., CRIMINAL PROCEDURE, § 18.2(b), p. 130 (4th ed. 2015). The Court of Criminal Appeals
has noted that other courts generally hold a delay of eight months to a year, or longer, is
presumptively prejudicial and triggers a speedy trial analysis. See, e.g., Shaw, 117 S.W.3d at 889;
Harris, 827 S.W.2d at 956. And, in felony sexual assault cases and cases in which defendants are
released on bond, the Court of Criminal Appeals has recognized that a delay of four months is not
sufficient while a seventeen-month delay is. Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim.
App. [Panel Op.] 1983) (holding delay of seventeen months in prosecution for rape was
presumptively prejudicial); Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973) (holding
no presumptive prejudice when defendant, charged with rape and incarcerated on burglary
conviction, was tried four months after indictment). However, “there are some cases which do not
fit this mold.” LAFAVE, supra, at § 18.2(b), p. 130.
-9- 04-17-00568-CR
There is “no constitutional basis for holding that the speedy trial right can be quantified
into a specified number of days or months.” Barker, 407 U.S. at 523. And “[t]here is no set time
element that triggers the analysis.” Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008).
“Barker’s formulation necessarily compels courts to approach speedy trial cases on an ad hoc
basis.” Brillon, 556 U.S. at 91 (internal quotation omitted). The right to a speedy trial is necessarily
relative, and whether the length of a delay is presumptively prejudicial and triggers an inquiry into
the other Barker factors “is necessarily dependent upon the peculiar circumstances of the case.”
Barker, 407 U.S. at 522, 530-31.
In this context, “prejudice” or “prejudicial” refers to (1) oppressive pretrial incarceration;
(2) anxiety or concern related to the pending criminal charges; and (3) impairment of the accused’s
defense. Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). Circumstances of a case that
can affect whether the delay is presumptively prejudicial therefore may include the nature of the
charged offense, and whether the defendant can make bail or must await trial while confined in
jail. See Barker, 407 U.S. at 520 (noting, “If an accused cannot make bail, he is generally
confined . . . in a local jail.”). “[T]he delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge.” Id. at 531. The State is entitled
to a reasonable period to prepare its case. Cf. Shaw, 117 S.W.3d at 889-90 (noting, in aggravated
sexual assault case, a three-month period between indictment and trial was a reasonable time for
State to prepare its case). But “unreasonable delay in run-of-the-mill criminal cases cannot be
justified by simply asserting that the public resources provided by the States’ criminal justice
system are limited and that each case must await its turn.” Barker, 407 U.S. at 538 (White, J.,
concurring).
The State cites an unpublished case from the El Paso court of appeals involving a four-
month delay. State v. Wester, No. 08-16-00105-CR, 2017 WL 4277584 (Tex. App.—El Paso Sept. - 10 - 04-17-00568-CR
27, 2017, no pet.) (mem. op., not designated for publication). The court of appeals noted courts
must consider the “substance of the case” and the seriousness and complexity of the offense. Id. at
*3. Wester, the defendant, was released on bond the day after he was arrested, but he was
subsequently arrested on new, federal charges. Id. at *1. The court of appeals, relying on felony
sexual assault cases, held a four-month delay did not trigger a full Barker analysis when the
defendant was charged with first-degree-felony drug possession. Id. at *1, 3.
The State also cites State v. Owens, which involved a seven-month delay. 778 S.W.2d 135,
136 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). In Owens, the delay was 223 days from the
date of the defendant’s arrest to the date of his indictment for two counts of burglary of a habitation.
Id. Notably, the defendant was incarcerated in county jail during that time. Id. Two days after the
indictment, the defendant filed an application for writ of habeas corpus, raised his right to a speedy
trial, and requested dismissal of the charges. Id. The trial court granted the defendant relief, and in
considering the State’s appeal, the court of appeals affirmed. Id. Addressing Barker’s length-of-
delay factor, the court of appeals relied on Barker, noting, “A delay that can be tolerated for an
‘ordinary street crime’ is considerably less than the time for a serious, complex conspiracy charge.”
Id. at 137 (citing Barker, 407 U.S. at 530). The court then held burglary of a habitation is an
“ordinary street crime,” and proceeded to analyze the remaining Barker factors. Id. at 137-38.
Although the State asks us not to follow Owens for several reasons, those reasons do not relate to
the Owens court’s emphasis on Barker’s principle that we must consider the nature and complexity
of the offense.
At least one court has held that under Barker, a three-and-half-month delay can trigger an
analysis of the remaining Barker factors, depending upon the specific facts of the case. State v.
Reaves, 376 So. 2d 136, 138 (La. 1979) (noting the court “assiduously follow[s] the Barker v.
Wingo analysis in evaluating Louisiana speedy trial claims”). In Reaves, the defendant was - 11 - 04-17-00568-CR
arrested and charged with misdemeanor possession of marijuana, and he was released on bail. Id.
at 137. The court reset the trial multiple times over the course of several months because the State
was unable to secure its witnesses’ attendance. Id. The court explained that although the case had
been pending for only three and a half months:
the mere length of the delay does not determine the speedy trial issue. Since this case involves a simple misdemeanor offense, possession of a single marijuana cigarette, the constitution tolerates relatively brief delays. Accordingly, we must examine the peculiar circumstances of the case to find if the length of the delay and the closely related factor, the reason for the delay, provoke a speedy trial inquiry.
Id. at 138 (internal citations omitted). The Reaves court proceeded to analyze the remaining Barker
factors and affirmed the trial court’s dismissal of the defendant’s misdemeanor drug possession
charge on speedy trial grounds. Id. at 138-39.
The State argues Wester is good law, Owens is bad law, and that we should follow the
former. But Wester and Owens, as well as Reaves, read in light of Barker’s principles, as reiterated
by the Court of Criminal Appeals, can be reconciled based on their different facts. Under Barker,
we may not quantify the exact length of the time that will, in all cases, trigger or not trigger an
analysis of the remaining Barker factors. Barker, 407 U.S. at 523; Cantu, 253 S.W.3d at 281. The
above-discussed authorities are all consistent with the principle that we must consider the delay in
light of the substance, seriousness, and complexity of the offense, as well as whether the defendant
has been incarcerated in jail awaiting trial. See Wester, 2017 WL 4277584, at *1-3; Owens, 778
S.W.2d at 136-38; Reaves, 376 So. 2d at 138-39; see also Doggett, 505 U.S. at 652 n.1 (noting
whether a specific delay is presumptively prejudicial “depend[s] on the nature of the charges,” and
citing LAFAVE, supra, § 18.2); Barker, 407 U.S. at 531 (noting delay should be viewed in light of
seriousness and complexity of the charges).
With these principles in mind, we turn to the facts of this case. As of the August 8, 2017
trial date, Lopez had been accused by virtue of his arrest for 112 consecutive days. See Dragoo, - 12 - 04-17-00568-CR
96 S.W.3d at 313 (providing delay measured from time of arrest). Although the State announced
at the August 8, 2017 hearing it was ready to proceed to trial, the parties agreed there was
uncertainty as to whether Lopez was competent to stand trial. See TEX. CODE CRIM. PROC. ANN.
art. 46B.003(a) (providing an incompetent defendant may not be tried). Had Lopez not asserted
his constitutional right to a speedy trial, the trial court would have had no discretion but to delay
trial and order a competency evaluation. See id. art. 46B.005(a). The trial court, as a factfinder,
was entitled to infer there necessarily would be additional delays before the case could proceed to
trial on Lopez’s guilt. Thus, the record supports an implied finding that the delay did not consist
of only 112 days, but potentially longer because not dismissing the charge would have required an
evaluation of Lopez’s competency to stand trial and possibly subsequent competency proceedings
before the trial court could have proceeded with a trial on the misdemeanor assault charge. See id.
arts. 46B.004(d), 46B.005(a), (b).
It is undisputed Lopez was incarcerated for 112 days because he could not make bail, and
we must presume, given the partial reporter’s record, the visiting judge denied Lopez’s request to
be released on bond. See TEX. R. APP. P. 34.6(c); Mackenzie, 2017 WL 3306427, at *4; Zavala,
498 S.W.3d at 642. The trial court considered the time Lopez had been incarcerated, as well as the
likelihood of additional delays due to the question of Lopez’s competency, in light of the nature
of the charged offense and the maximum punishment available. Lopez was charged with a Class
A misdemeanor, the maximum punishment for which is a $4,000 fine and confinement in jail for
a term not to exceed one year. See TEX. PENAL CODE ANN. §§ 12.21, 22.01(a)(3), (c)(1) (West
2011 & Supp. 2017). Ordinarily, a defendant who is detained in jail pending trial of an accusation
against him must be released on personal bond if the state is not ready for trial within “30 days
from the commencement of his detention if he is accused of a misdemeanor punishable by a
sentence of imprisonment in jail for more than 180 days.” TEX. CODE CRIM. PROC. ANN. art. - 13 - 04-17-00568-CR
17.151, § 1(2). As the trial court noted, Lopez had “spent what would be the equivalent of almost
a year in jail if you’re giving him two for one.” The trial court was also presented with the prospect
that Lopez would be determined incompetent to stand trial and further confined. See TEX. CODE
CRIM. PROC. ANN. art. 46B.0095(a) (West Supp. 2017) (providing a defendant incompetent to
stand trial may be institutionalized for a period of time up to “the maximum term provided by law
for the offense”).
Furthermore, the facts alleged in support of the information and complaint were that Lopez
“put[] his teeth [on his elderly mother’s face] while trying to bite her” “when [he] knew and should
reasonably have believed that [she] would regard the contact as offensive and provocative.” Unlike
the cases upon which the State primarily relies, this case does not involve a complex factual
scenario, a felony offense, or a defendant who has been released on bail pending trial. This case,
like Reaves, involves a defendant charged with a relatively straightforward misdemeanor offense.
See 376 So. 2d at 138. The facts here present a stronger case than Reaves for concluding the delay
was presumptively prejudicial because the Reaves defendant was released on bail and his claim to
prejudice was missing six days of work to be present for multiple trial settings. Id. at 139. Lopez,
on the other hand, could not make bail and had spent 112 days incarcerated on a misdemeanor
offense.
Consistent with Barker and our sister courts, we consider the length of delay and the
amount of time Lopez spent in the county jail in light of the substance, seriousness, and complexity
of the offense. After all, a primary purpose of the right to a speedy trial is to prevent undue and
oppressive pretrial incarceration. Marion, 404 U.S. at 320. “The time spent in jail awaiting trial
has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and
it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time
spent in jail is simply dead time.” Barker, 407 U.S. at 532-33. We conclude that, based on the - 14 - 04-17-00568-CR
specific facts presented by this case, the delay in this case was presumptively prejudicial and
sufficient to trigger an analysis of the remaining Barker factors.
2. The extent to which the delay stretches beyond the triggering length.
The second inquiry under the length-of-delay factor is the length of the total delay,
including the delay beyond the triggering length. See Hopper, 520 S.W.3d at 924. As of August 8,
2017, Lopez had been incarcerated for 112 days on a misdemeanor offense. As we previously
noted, the trial court was entitled to infer additional delays would be necessary if the trial court
denied Lopez’s Motion for Speedy Trial. Lopez’s trial counsel argued the delay for a competency
hearing would be approximately one month and Lopez could be confined for up to a year; the State
did not disagree or argue otherwise. See Shaw, 117 S.W.3d at 889 (requiring us to consider the
arguments and information available to the trial court). Considering the 112-day length of Lopez’s
pretrial incarceration, the simplicity of the offense, the maximum sentence for the charged offense,
a reasonable time for the State to prepare this case, and an additional delay would be necessitated
by the unresolved question of Lopez’s competency to stand trial, we conclude the length of the
delay in this case weighs slightly against the State.
B. The Reasons for Delay
The next factor we must consider is the reasons for the delay. See Hopper, 520 S.W.3d at
924. “The burden of justifying the delay is on the State.” Voda v. State, 545 S.W.3d 734, 742 (Tex.
App.—Houston [14th Dist.] 2018, no pet.) (citing Cantu, 253 S.W.3d at 280). “In evaluating the
State’s reason for the delay, we assign different weights for different reasons. Valid reasons for
delay do not weigh against the State, whereas bad-faith delays weigh heavily against the State.”
Id. (internal citations omitted). “A more neutral reason, such as negligence, will weigh less heavily
against the State.” Id. “In the absence of an assigned reason for the delay by the State, we may
- 15 - 04-17-00568-CR
presume neither a deliberate attempt to prejudice the defense nor a valid reason for the delay.” Id.
(citing Dragoo, 96 S.W.3d at 314).
The record shows there are two 1 delays in this case we must consider. The first delay—the
112-day period from Lopez’s arrest to the August 8, 2017 trial date—was caused primarily by the
State’s decision to pursue a felony assault charge initially, and then to refile the case against Lopez
as a misdemeanor. The parties disputed in the trial court whether there was any evidence showing
Lopez’s mother suffered a bodily injury that would support charging a felony. The State explained
the State refiled the case as a misdemeanor because the State likely “believed it was a more
appropriate charge than the felony.” The trial court was not bound to accept the State’s explanation.
And the trial court was entitled to infer the State should have filed the misdemeanor charge from
the outset either because the misdemeanor charge was more appropriate or because the State had
no evidence to prosecute the case as a felony. Based on the reason the State assigned for the delay,
the trial court could have impliedly found the State was at least negligent by initially filing the case
as a felony when the case should or must have been filed as a misdemeanor from the outset. Thus,
the reason for the first delay of 112 days weighs against the State. See Hopper, 520 S.W.3d at 924.
The second delay we must consider is the future delay necessitated by the unresolved
question as to Lopez’s competency to stand trial. “Courts have recognized several other situations
which fall within the ‘valid reason’ category, such as incompetency of the defendant.” LAFAVE,
supra, § 18.2(c), at 136 (citing United States v. Geelan, 520 F.2d 585 (9th Cir. 1975); U. S. ex rel.
1 We note the record supports a possible third delay if Lopez were determined competent to stand trial. The trial court recited for the record, with no objection from the State, facts suggesting Lopez’s mother was not willing to testify against Lopez and was simply using the criminal prosecution to keep Lopez in jail. The State does not complain on appeal that the trial court improperly took notice of these matters. See TEX. R. APP. 38.1(i). Thus, even if Lopez were determined to be competent, the trial court clearly questioned whether there would ever be a trial in this case. The trial court noted Lopez’s mother had been “very vocal” about her intent, which suggests the State likely knew about Lopez’s mother’s intent in pressing charges against Lopez. These facts could support an inference that the State’s delay was in bad faith, in which case this delay would weigh heavily against the State. See Cantu, 253 S.W.3d at 280- 81.
- 16 - 04-17-00568-CR
Little v. Twomey, 477 F.2d 767 (7th Cir. 1973)); see Hull v. State, 699 S.W.2d 220, 222 (Tex.
Crim. App. 1985) (“[T]he eight month delay due to appellant’s incompetency to stand trial does
not infringe on his right to speedy trial.”) (citing Grayless v. State, 567 S.W.2d 216 (Tex. Crim.
App. [Panel Op.] 1978)). However, holding a defendant longer than reasonably necessary, as
determined by the “gravity of the offense,” presents different circumstances. Little, 477 F.2d at
770 (citing Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Moreover, the State has a duty to
promptly try a defendant and “may not justify a delay merely by citing the defendant’s
incompetence.” Geelan, 520 F.2d at 588.
On August 8, 2017, the parties informed the trial court that the issue of Lopez’s competence
had been raised and discussed at the pretrial hearing before the visiting judge. The trial court was
informed the visiting judge had ordered Lopez to be evaluated, but Lopez was not evaluated. Given
the partial reporter’s record, we must presume the visiting judge had a serious question as to
Lopez’s competence to stand trial. See TEX. R. APP. P. 34.6(c); Mackenzie, 2017 WL 3306427, at
*4; Zavala, 498 S.W.3d at 642. However, the record does not specify which party, if either, the
trial court directed to evaluate Lopez. See TEX. CODE CRIM. PROC. ANN. art. 46B.021 (providing
the process for ordering a competency evaluation). The State has not provided the court with an
explanation for Lopez not being evaluated. We therefore cannot say the record supports an
inference that the State was necessarily responsible for the inevitable future delay. See Voda, 545
S.W.3d at 742; Dragoo, 96 S.W.3d at 314. Overall, we conclude the second factor, the reasons for
the delays, weighs slightly against the State.
C. Assertion of the Right
We next consider the extent that Lopez asserted his right to a speedy trial. Barker, 407 U.S.
at 530; Hopper, 520 S.W.3d at 924; Wisser, 350 S.W.3d at 165. Lopez had the burden as to this
factor. Cantu, 253 S.W.3d at 280. Generally, the assertion-of-the-right factor concerns whether a - 17 - 04-17-00568-CR
defendant asserted his right to a speedy trial in the trial court as opposed to the first time on appeal.
See Dragoo, 96 S.W.3d at 314; Phillips, 650 S.W.2d at 400-01 (citing Barker, 407 U.S. at 531-
532). “Of course, the defendant has no duty to bring himself to trial; that is the State’s duty.”
Zamorano, 84 S.W.3d at 651. “This does not mean that the defendant has no responsibility to
assert his right to a speedy trial.” Id. “[T]he defendant’s assertion of his speedy trial right is entitled
to strong evidentiary weight in determining whether the defendant is being deprived of the right.”
“Filing for a dismissal instead of a speedy trial will generally weaken a speedy-trial claim
because it shows a desire to have no trial instead of a speedy one.” Cantu, 253 S.W.3d at 283. “If
a defendant fails to first seek a speedy trial before seeking dismissal of the charges, he should
provide cogent reasons for this failure. Repeated requests for a speedy trial weigh heavily in favor
of the defendant, while the failure to make such requests supports an inference that the defendant
does not really want a trial, he wants only a dismissal.” Id.
“This is not to say, however, that asking only for dismissal will result in a ‘waiver,’ while
seeking a speedy trial and, in the alternative, a dismissal, would preserve the claim.” Phillips, 650
S.W.2d at 401. “In some cases, defense counsel may legitimately feel that a long delay has caused
a client so much prejudice that dismissal is warranted, even if the State is belatedly ready to move
promptly.” Id. “Each case must turn on its own facts, and the particular relief a defendant seeks is
but one fact to consider.” Id. We also consider whether there is anything “to suggest that appellant
deliberately failed to move for a speedy trial because of tactical reasons.” See id. (citing Barker,
407 U.S. at 534-36); accord Cantu, 253 S.W.3d at 283.
The State argues Lopez “did not assert his right to a speedy trial; instead, he asked for the
case to be dismissed.” Because dismissal is the only possible remedy for a violation of the right to
a speedy trial, the assertion of the right to a speedy trial and a request for a dismissal are not - 18 - 04-17-00568-CR
mutually exclusive. See Dragoo, 96 S.W.3d at 313. The record establishes Lopez asserted his right
to a speedy trial in the trial court on August 8, 2017, first by orally asserting his right and then by
filing a written Motion for Speedy Trial. Lopez’s assertion of his speedy trial right in the trial court
“is entitled to strong evidentiary weight in determining whether the defendant is being deprived of
the right.” See Zamorano, 84 S.W.3d at 651.
Lopez first asserted his right to a speedy trial by requesting a dismissal on the date of trial.
Although such an assertion of his speedy trial right ordinarily weakens a speedy trial claim, the
record supports an implied finding of historical fact that trial counsel legitimately felt the delay
had caused so much prejudice that dismissal is warranted, even though the State announced ready
to proceed to trial. See Phillips, 650 S.W.2d at 401. Lopez was incarcerated on or about April 17,
2017; he was charged with misdemeanor assault on July 11, 2017, and Lopez remained in jail; at
the pretrial hearing, the issue of Lopez’s competency was raised before a visiting judge, but no
competency evaluation was conducted; the trial date was set for August 18, 2017; and Lopez first
raised his right to a speedy trial on August 18, 2017. The record supports an implied finding of
historical fact that Lopez did not deliberately fail to request a speedy trial for tactical reasons.
The State argues a dismissal for denial of a right to a speedy trial is premature when the
defendant fails to exhaust less drastic remedies, such as a pretrial writ of habeas corpus or a motion
to reduce his bond under article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151. We agree
that we must consider whether a defendant who is granted bail ever attempts to secure his release
on bail. Grayless, 567 S.W.2d at 222. The record in this case shows Lopez was initially unable to
make bail while the case was filed as a felony case. And after the State filed the misdemeanor case,
at the pretrial hearing before the visiting judge, Lopez pursued less drastic relief of being released
from jail on a personal recognizance bond and having his competency evaluated before the trial
date. The trial court denied the request for release, but then set the trial for only twelve days later. - 19 - 04-17-00568-CR
Under these circumstances, we cannot say Lopez’s decision not to pursue habeas relief for a
violation of article 17.151 significantly undermines his assertion of his right to a speedy trial.
Considering Lopez’s assertion of his right to a speedy trial in the trial court, we conclude this factor
weighs slightly against the State.
D. Prejudice
We next consider prejudice. Barker, 407 U.S. at 530; Hopper, 520 S.W.3d at 924; Wisser,
350 S.W.3d at 165. We assess this factor “in light of the interests the right to a speedy trial was
designed to protect: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and
concern of the accused, and (3) limiting the possibility that the defense will be impaired.” Hopper,
520 S.W.3d at 924. “Affirmative proof of particularized prejudice is not essential to every speedy
trial claim because excessive delay presumptively compromises the reliability of a trial in ways
that neither party can prove or, for that matter, identify . . . and its importance increases with the
length of delay.” Id. (internal quotation marks omitted). “Extensive pretrial incarceration as a result
of the pending charges, of course, clearly shows prejudice.” GEORGE E. DIX & JOHN M.
SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 28.18, at 685 (3d.
ed. 2011).
Lopez was incarcerated for a total of 112 days before trial on a misdemeanor charge for
which the maximum sentence included jail time of up to 365 days. The trial court considered the
total time Lopez spent in jail as it relates to the maximum sentence he could have received for the
offense. As the State acknowledges, any time spent in county jail is unpleasant, to say the least.
See Barker, 407 U.S. at 532-33 (“The time spent in jail awaiting trial has a detrimental impact on
the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most
jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead
time.”). Lopez also testified he suffered from mental health issues; specifically, that he was - 20 - 04-17-00568-CR
diagnosed with anxiety, depression, and bipolar disorder. Edwards v. State, 867 S.W.2d 90, 96
(Tex. App.—Corpus Christi 1993, no pet.) (considering the state of the defendant’s mental health).
The State and Lopez’s trial counsel also raised concerns about Lopez’s competence to stand trial,
suggesting Lopez lacked a rational understanding of the proceedings or the present ability to
communicate with his counsel. See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a). Thus, the record
supports an implied finding of historical fact that Lopez’s pretrial incarceration was particularly
oppressive considering the nature and seriousness of the offense. See Hopper, 520 S.W.3d at 924.
But because there is no evidence of the other prejudice components, particularly the most serious
component of impairment of the defense, we conclude this factor weighs only slightly against the
State. See Barker, 407 U.S. at 532.
E. Balancing the Factors
We agree with the State’s characterization of this appeal, “This is a hard case.” The facts
of this case are uncommon for speedy trial cases, and most of the Barker factors weigh only slightly
against the State. As we have explained, the State took nearly three months to determine, from the
very simple facts of this case, whether it would be more appropriate to charge Lopez with felony
assault or misdemeanor assault. During those three months, Lopez—who suffers from anxiety,
depression, and bipolar disorder and who might ultimately be incompetent to stand trial—
languished in the county jail, unable to make bail, without being charged. After the State
determined it would be “more appropriate” to charge Lopez with misdemeanor assault, the State
sought to keep Lopez in the county jail. A visiting judge then denied Lopez’s request to be released
from jail. Although the visiting judge ordered a competency evaluation, Lopez was never evaluated
before trial. As a result, Lopez was in jail for a total of 112 days on a misdemeanor charge for
which the maximum punishment is confinement for 365 days. On August 8, 2017, proceeding to
trial was not an option, despite the State’s ready announcement. But for Lopez’s Motion for Speedy - 21 - 04-17-00568-CR
Trial, the trial court’s only option was to further delay this case for competency proceedings.
Having engaged in the “difficult and sensitive” process of balancing the Barker factors, we
conclude the factors sufficiently weigh against the State and in favor of upholding the trial court’s
implied determination that the delay violated Lopez’s right to a speedy trial. See Zamorano, 84
S.W.3d at 648 (citing Barker, 407 U.S. at 533).
CONCLUSION
The record supports the trial court’s implied determination that the delay in this case
violated—or that continuing the proceedings would violate—Lopez’s constitutional right to a
speedy trial. We cannot construe chapter 46B of the Texas Code of Criminal Procedure, a state
statute mandating a competency evaluation under some circumstances, as requiring Lopez’s
continued prosecution in violation of his constitutional rights. We therefore hold the trial court did
not err “by failing to order a competency evaluation and, instead, dismissing the information
against [Lopez] less than four months after he was arrested.” Accordingly, the trial court’s order
is affirmed.
Luz Elena D. Chapa, Justice
PUBLISH
- 22 -